¶ 30 (dissenting) — Absent proof of a recent overt act, Richard Garrett Turay has been unlawfully imprisoned as a sexually violent predator since 1994. However, the majority dismisses Turay’s personal restraint petition (PRP), claiming the petition is an abuse of the writ.
Sanders, J.¶31 Turay had been incarcerated for second degree rape but was later released on parole. After months of freedom he was reincarcerated for a parole violation. At that point the State filed its sexual predator petition, seeking further incarceration under the sex predator statute. He was convicted at trial but without proof of a recent overt act. Turay challenged the judgment by direct appeal and simultaneous personal restraint petition. We dismissed the PRP because it addressed the same issues as the direct appeal. In re Det. of Turay, 139 Wn.2d 379, 384, 986 P.2d 790 (1999).
¶32 After Turay lost the appeal, he filed a second PRP, arguing this civil commitment statute was unconstitutionally punitive. This court dismissed the second PRP in light of a recent United States Supreme Court case. Turay then filed a third PRP in May 2002, which we dismissed as a mixed petition. In re Pers. Restraint of Turay, 150 Wn.2d 71, 74 P.3d 1194 (2003).
¶33 On October 1, 2003, Turay filed his fourth and instant PRP, now at issue.
¶34 In re Personal Restraint of Jeffries, 114 Wn.2d 485, 789 P.2d 731 (1990), sets forth the abuse of writ standard: “[I]f the petitioner was represented by counsel throughout postconviction proceedings, it is an abuse of the writ for him or her to raise, in a successive petition, a new issue that was ‘available but not relied upon in a prior petition.5 55 114 Wn.2d at 492 (quoting Kuhlmann v. Wilson, All U.S. 436, 444 n.6, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986)). Jeffries further explains: “If the claim is based upon newly discov*59ered evidence, for example, or upon intervening case law, it would not have been ‘available’ in the prior petition.” Id. (emphasis added).
¶35 The touchstone for abuse of the writ is equity, and equity’s goal is “ ‘to do substantial justice.’ ” Hough v. Stockbridge, 150 Wn.2d 234, 236, 76 P.3d 216 (2003) (quoting Carpenter v. Folkerts, 29 Wn. App. 73, 78, 627 P.2d 559 (1981)).
¶36 The majority dismisses Turay’s current PRP as an abuse of the writ because it allegedly raises a previously available issue. Majority at 50-51. Turay claims the State was required to prove a recent overt act but failed to do so, contrary to intervening case law—our decision in In re Detention of Albrecht, 147 Wn.2d 1, 51 P.3d 73 (2002).
¶37 Albrecht was not decided until after Turay filed his previous petitions.9 Notwithstanding, the majority argues the issue was previously available even if the case was not and, for that reason, the writ is barred. The majority asserts In re Personal Restraint of Young, 122 Wn.2d 1, 857 P.2d 989 (1993), recognized the recent overt act requirement, whereas Albrecht merely applied that rule to a different set of facts. Majority at 50-51. Therefore, concludes the majority, Turay is forever barred from raising the issue of his unconstitutional incarceration for the State’s failure to prove a recent overt act.
¶38 I disagree. Albrecht is “intervening case law” upon which Turay may now properly rely. That decision was previously unavailable. Turay cannot be faulted for failure to anticipate a decision which was yet to be made.
¶39 Young’s holding was clear, express, and unequivocal: “we hold that the State must provide evidence of a recent overt act in accord with [In re] Harris [, 98 Wn.2d 276, 654 P.2d 109 (1982)] whenever an individual is not incarcerated at the time the petition is filed.” Young, 122 Wn.2d at 41 (emphasis added). “We conclude that where the individual *60is currently incarcerated no evidence of a recent overt act is required.” Id. (emphasis added).10
¶40 The literal language of Young established a bright line rule: the State must prove a recent overt act only when the individual is not incarcerated on the day the commitment petition is filed. The physical location of the individual on that date is outcome determinative according to Young. Turay had no claim under Young because he was imprisoned on the day the State filed the commitment petition. Proof of a recent overt act was unnecessary as per Young.
¶41 Subsequent to Young, In re Detention of Henrickson, 140 Wn.2d 686, 2 P.3d 473 (2000), repeated this holding. There the State released one defendant into the community pending appeal and the other pending sentencing. Both were incarcerated, however, on the day the commitment petitions were actually filed. We again held that the State need not prove a recent overt act if the individual was incarcerated for a sexually violent crime or for an act that would qualify as a recent overt act on the day the State filed the petition for commitment:
In order to commit a nonincarcerated individual as a sexually violent predator, the State must also prove beyond a reasonable doubt that the individual has committed a recent overt act evidencing his or her status as a sexually violent predator. As long as the individual is in custody on the day the petition is filed, however, the statute does not require proof of a recent overt act.
When, on the day a sexually violent predator petition is filed, an individual is incarcerated for a sexually violent offense, or for an act that would itself qualify as a recent overt act, due process does not require the State to prove a further overt act occurred between arrest and release from incarceration.
Henrickson, 140 Wn.2d at 692, 695 (citations omitted) (emphasis added). Thus Henrickson continued the bright *61line rule: when someone is incarcerated on the day the petition is filed, no recent overt act need be proved.
¶42 Then comes Albrecht. That case changed the law 180 degrees from Young by squarely holding mere incarceration is insufficient to relieve the State of its burden to prove a recent overt act. Albrecht, 147 Wn.2d at 11. Albrecht served a sentence for second degree child molestation but was then released to community placement. He later violated the conditions of placement and was reincarcerated. At that point the State filed the commitment petition. We held even though Albrecht was incarcerated at the time the petition was filed, due to his previous release the State must plead and prove a recent overt act to satisfy due process: “While due process does not require that the absurd be done, once the offender is released into the community, as Albrecht was, due process requires a showing of current dangerousness.” Albrecht, 147 Wn.2d at 10.
|43 Contrary to Young’s bright line rule, Albrecht held the mere fact of incarceration is now insufficient; release into the community preceding the current incarceration requires proof of a recent overt act. Although I would argue the rule in Albrecht is a good one, it cannot be understood from Young or Henrickson. Hence Albrecht was intervening case law not previously “available.” Turay should not be penalized for lack of clairvoyance.
¶44 Albrecht’s dissent even claimed “that the majority is overruling Henrickson” and was uncertain “[w]here the majority opinion leaves our holding in Henrickson.” Albrecht, 147 Wn.2d at 15-16 (Owens, J., dissenting, joined by Ireland & Bridge, JJ.). The same dissenters who characterized Albrecht as a significant change in the law now would leave Turay imprisoned for agreeing with them! Where is the equity or justice in that? Turay does not abuse the writ, but today’s majority does.
¶45 Even assuming Albrecht is not intervening case law upon which Turay may justifiably rely, the majority also rejects Turay’s argument that the omission of an issue in a previous petition must be intentional to abuse the writ, *62instead of inexcusably neglectful. Majority at 53-54. The majority sidesteps our language in In re Personal Restraint of Stoudmire, 141 Wn.2d 342, 5 P.3d 1240 (2000): “The court in Jeffries seems concerned with the raising of new issues in successive PRPs as a delaying tactic.” Stoudmire, 141 Wn.2d at 352; see also In re Pers. Restraint of Greening, 141 Wn.2d 687, 701, 9 P.3d 206 (2000) (since Greening was unrepresented, the court “need not suspect that his failure to effectively raise this claim in his earlier petition was a tactical ploy”). Clearly if filing successive PRPs is a delaying tactic, it is an intentional act in bad faith, not a good faith claim that an intervening development now justifies an argument that may not have been supported before.
¶46 The majority relies on federal law to support the inexcusable neglect standard without duly considering the intentional standard developed under our state’s jurisprudence. See McCleskey v. Zant, 499 U.S. 467, 489, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991). The intentional omission standard best serves the interests of justice by penalizing a party only if his attorney purposely omits a claim. Courts should not tolerate intentionally spawning piecemeal litigation, but they should be ever vigilant to protect the rights of those who seek, in good faith, to vindicate their just legal entitlements.
¶47 But even under the inexcusable neglect standard, Turay’s petition is proper. The United States Supreme Court has noted two situations in which a court may excuse a procedural default and examine the merits of the case: upon a showing of cause and prejudice, or when there is a fundamental miscarriage of justice. McCleskey, 499 U.S. at 493-94. The “cause” the Court contemplates is “ ‘some objective factor external to the defense impeded counsel’s efforts’ to raise the claim in state court,” and the prejudice must be “actual.” Id. (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986)). Objective factors include “ ‘a showing that the factual or legal basis for a claim was not reasonably available to counsel.’ ” Id. at 493-94 (quoting Murray, 477 U.S. at 488). The fundamental *63miscarriage of justice standard is applicable only in “extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime.” McCleskey, 499 U.S. at 494.
¶48 The majority dismisses the cause and prejudice exception as applied to Turay for the same reasons it rejected his Albrecht argument—the majority asserts the law has not changed enough to make Turay’s overt act claim previously unavailable. Majority at 55-56.1 disagree for the reasons stated. A significant development of legal authority is an objective cause, and it is good cause to protect anyone from deprivation of liberty absent proof from the State of all necessary elements to justify a civil commitment under the statute and constitution.
¶49 Likewise, the majority a priori rejects the fundamental miscarriage of justice standard when applied to civil commitments. The majority reasons that no innocent person can be “punished” when the confinement is “civil,” not “criminal.” Majority at 56. The majority’s argument completely ignores reality and precedent.
¶50 The technical distinction between a criminal incarceration and a civil commitment is meaningless to a person in Turay’s situation. In both cases, the person is not free to come and go as he pleases, and his liberty has been lost to incarceration. Civil incarceration is, according to the United States Supreme Court, “a massive curtailment of liberty.” Humphrey v. Cady, 405 U.S. 504, 509, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972). It makes no difference whether we call the deprivation criminal or civil. In fact, the recent overt act requirement was developed in direct response to “civil” commitment. See In re Harris, 98 Wn.2d 276, 654 P.2d 109 (1982).
¶51 Turay’s personal restraint petition does not abuse the writ. He is entitled to his day in court to test his incarceration against recent case law developments. The petition should be granted because the State failed to plead *64and prove an essential element necessary to justify imprisonment. That is also what justice and equity require.
152 I dissent.
Alexander, C.J., concurs with Sanders, J.
We decided Albrecht on August 1, 2002. Turay’s most recent PRP before the current one was filed in May 2002.
The legislature codified the recent overt act requirement following Young. See Albrecht, 147 Wn.2d at 8; RCW 71.09.030(5).